No. 16-1161 IN THE Supreme Court of the United States BEVERLY R. GILL, et al., Appellants, v. WILLIAM WHITFORD, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT CouRT FOR THE WESTERN DISTRICT OF WISCONSIN BRIEF FOR AMICUS CURIAE WISCONSIN MANUFACTURERS & COMMERCE IN SUPPORT OF APPELLANTS JORDAN C. CORNING Counsel of Record ERic M. MCLEOD JOSEPH S. DIEDRicH HUSCH BLACKWEll LLP 33 East Main Street, Suite 300 Madison, WI 53701 (608) 255-4440 [email protected] Counsel for Amicus Curiae August 4, 2017 274736 A (800) 274-3321 • (800) 359-6859 i TABLE OF CONTENTS Page TABLE OF CONTENTS..........................i TABLE OF CITED AUTHORITIES .............. ii INTEREST OF THE AMICUS CURIAE ...........1 SUMMARY OF THE ARGUMENT................1 ARGUMENT....................................4 I. Elections are decided by individuals making purposeful choices based on innumerable factors that change over time ................4 II. Because it ignores how choice and change affect elections, Plaintiffs’ theory of the case fails conceptually and legally ........14 A. Plaintiffs’ theory of the case disregards the role of individual choice and change over time, rendering it conceptually untenable .................14 B. Neglecting the role of choice— particularly the choice not to vote— runs counter to this Court’s Equal Protection jurisprudence ...............29 CONCLUSION .................................33 ii TABLE OF CITED AUTHORITIES Page CASES Anderson v. Celebrezze, 460 U.S. 780 (1983)............................10 Baldus v. Members of Wisconsin Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012)..............6 Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788 (2017)...........................30 Burns v. Richardson, 384 U.S. 73 (1966)..........................30, 31 Cooper v. Harris, 137 S. Ct. 1455 (2017) ..........................30 Davis v. Bandemer, 478 U.S. 109 (1986) .............................5 Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981) ............................22 Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ....................29, 31, 32 Fortson v. Dorsey, 379 U.S. 433 (1965)............................29 iii Table of Contents Page League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ...........................18 Vieth v. Jubelirer, 541 U.S. 267 (2004)....................... 5, 8, 20 Wesberry v. Sanders, 376 U.S. 1 (1964) ...........................29, 31 STATUTES AND OTHER AUTHORITIES Craig Gilbert, Difference-Makers in Trump’s Wisconsin Win, Milwaukee Journal Sentinel (Nov. 15, 2016, 11:14 AM).......................28 Dee Allsop & Herbert F. Weisberg, Measuring Change in Party Identification in an Election Campaign, 32 Am. J. of Pol. Sci. 996 (1988) ........5 F.A. Hayek, The Use of Knowledge in Society, 35 The Am. Econ. Rev. (1945)................13, 20 Fed. Election Comm’n, Official 2016 Presidential General Election Results, Jan. 30, 2017 ...........7 The Life of Ronald Reagan: A Timeline, NPR........5 Jeffrey M. Jones, Record-High 42% of Americans Identify as Independents,Gallup (Jan. 8, 2014) ..................................7 iv Cited Authorities Page Jeremiah J. Garretson, Changing with the Times: The Spillover Effects of Same-Sex Marriage Ballot Measures on Presidential Elections, 67 Pol. Res. Q. 280 (2014) ..............9 John W. Schoen, Here’s What Clinton, Trump Spent to Turn Out Votes, CNBC (Nov. 7, 2016)..........12 Paul Allen Beck et al., The Social Calculus of Voting: Interpersonal, Media, and Organizational Influences on Presidential Choices, 96 The Am. Pol. Sci. Rev. 57 (2002) .......7 Paul S. Herrnson & James M. Curry, Issue Voting and Partisan Defections in Congressional Elections, 36 Legis. Stud. Q. 281 (2011) .....passim 1 INTEREST OF THE AMICUS CURIAE1 Wisconsin Manufacturers & Commerce (“WMC”) is Wisconsin’s state chamber of commerce, state manufacturers’ association, and state safety council. Founded in 1911, WMC now has nearly 3,800 members, including large and small manufacturers, service companies, local chambers of commerce, and specialized trade associations. WMC is a nonpartisan organization dedicated to making Wisconsin the most competitive state in the nation. To that end, WMC regularly participates in public policy debates and seeks to advance its members’ interests through the legislative process. WMC thus has an interest in ensuring that enactments of the state legislature are given due respect under the Constitution without improper interference from the other co-equal branches of government. SUMMARY OF THE ARGUMENT This case involves the Plaintiffs’ claim that 2011 Wisconsin Act 43 is an unconstitutional partisan gerrymander that cracks and packs Democrats across State Assembly districts. To evaluate such a claim, one must know how many Democrats reside in each district. Plaintiffs seek to show this by relying on election results and statistical analyses interpreting them. But in doing so, Plaintiffs lose sight of basic truths regarding the decisions made by actual voters. 1. Counsel for all parties have consented to this filing. No counsel for a party authored this brief in whole or in part. In addition to Wisconsin Manufacturers & Commerce, its members, and its counsel, the State Government Leadership Foundation made a monetary contribution intended to fund the preparation and submission of this brief. 2 We return to those basic truths. Every person is unique—and so is every individual voter. Come election time, individual voters make purposeful choices about who to vote for and whether to vote at all. Individual electoral choices, in turn, are influenced by innumerable and ever-changing factors, perhaps the most obvious of which is political-party affiliation. While some individuals routinely and exclusively vote for either Democratic or Republican candidates, others pay little attention to “R” and “D” designations. In fact, public-opinion polls show that ever more Americans identify as independent, often splitting their tickets or swinging from election to election. Party affiliation is but one factor of many. Another is the particular candidates running, who differ in strength based on incumbency, fundraising, campaigning, personal background, and other factors affecting a candidate’s appeal. Regardless of the strength of a given candidate, moreover, other candidates on the same ballot can sway voters’ choices. Individuals also choose who to vote for based on pressing issues of the day, their personal social networks, and any number of other factors. Importantly, hefty sums of individuals often choose not to vote at all. Keenly aware of these factors, campaigns spend significant amounts of time and money trying to persuade voters and to increase voter turnout. Whereas individuals choose whether to vote and who to vote for based on innumerable, interrelated factors, Plaintiffs’ theory of the case considers only one: party affiliation. Within that myopic focus, Plaintiffs’ arguments erroneously presume that individual voters and candidates never change their party affiliation and that individuals who identify with a particular party 3 are fungible. Plaintiffs’ evidence, too, displays the same presumptions: election results from 2012 and 2014, as well as statistical analyses built upon them, do not reflect changes in party platforms, candidates, issues, or any of the other numerous factors individuals consider when making electoral choices. Plaintiffs’ disregard of individual choice and change over time exposes conceptual and legal shortcomings in their theory of the case. To begin, Plaintiffs’ evidence does not measure how many Democrats voted, which candidates they voted for, or in what numbers. Rather, Plaintiffs’ evidence shows only how many votes were cast for Democratic candidates; it fails to differentiate Republican defectors and independent voters, and it wholly ignores nonvoters. As a result, Plaintiffs do not—indeed, cannot— explain how a discriminatory intent to harm Democrats necessarily relates to a discriminatory effect against individuals who may chose, or have chosen, to vote for Democratic candidates. Nor can they explain how looking at votes for a Democratic candidate proves that Democrats were cracked and packed. Hypothetical scenarios and repeated examples in Wisconsin’s recent political history clarify and underscore these points. Plaintiffs, in the end, fail to show how many Democrats reside in particular districts; and without that, it is impossible to know whether Democrats were gerrymandered. Further, Plaintiffs’ theory of the case conflicts with representation-rights precedent. When this Court has struck down redistricting plans under the Equal Protection Clause, it has generally sniffed out unconstitutionality by measuring, across districts, total population or voting- eligible population. Plaintiffs and the district court, by 4 contrast, measure the alleged unconstitutionality here by using numbers of actual votes in past elections—that is, actual-voter population. Doing so, however, treats individuals who choose to vote differently from those who choose not to. Absent exceptional circumstances, of which Plaintiffs offered no proof below, using actual-voter population is constitutionally problematic and finds no support in controlling caselaw. In its opinion and judgment below, the district court accepted Plaintiffs’ theory of the case essentially in its entirety. Because Plaintiffs’ theory is conceptually and legally untenable, this Court should reverse.